Emerging Technologies and the Flsa
| Jurisdiction | United States,Federal |
| Citation | Vol. 39 No. 11 Pg. 49 |
| Pages | 49 |
| Publication year | 2010 |
2010, November, Pg. 49. Emerging Technologies and the FLSA
November 2010
Vol. 39, No. 11 [Page 49]
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
Coordinating Editor
John M. Husband, Denver, of Holland and Hart LLP-(303) 295-8228, jhusband@hollandhart.com
About the Authors
Steven M. Gutierrez is the chair of Holland and Hart's Labor and Employment practice group. He has extensive experience addressing claims concerning wrongful termination, breach of express or implied employment contracts, violation of covenants not to compete, contracts for the protection of trade secrets, employment discrimination, wage matters (including FLSA collective actions), FMLA claims, defamation, torts, and claims of retaliatory discharge. Joseph Neguse is a member of Holland and Hart's Litigation Department and Labor and Employment practice group.
For more than seventy years, the Fair Labor Standards Act (FLSA) has been the foundation for regulatory supervision and enforcement in the context of wage and hour law. Although the FLSA has survived the political fluctuations of the federal government, it faces an uncertain future with the increased use of BlackBerrys,® iPhones, and other new technologies. This article provides a brief overview of FLSA overtime provisions, the effect of potential violations, recent cases concerning emerging technologies, and a summary of steps employers may consider in light of the demands of doing business in the 21st century.
The Fair Labor Standards Act (FLSA)(fn1) is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL), and impacts an estimated 130 million workers.(fn2) Among the FLSA's most well-known provisions is the requirement that employers pay employees one and one-half times their regular wage for any hours worked over the standard "workweek," defined as forty hours per week.(fn3) This general requirement for overtime compensation is riddled with exceptions, many of which have been the subject of steady litigation, year after year.
Recently, some employees have sought to extend the protections afforded by the FLSA to the work they are able to perform as a result of new technology. The clearest example is the increased usage of smartphones and other personal data assistants (PDAs) over the last decade. As more employees use mobile telephones, BlackBerrys,® and iPhones, employers and regulatory agencies are faced with several critical questions. As commentator Carmel Sileo notes:
Modern technology has made it easy and convenient for workers to telecommute, fielding work-related phone calls and e-mails when away from their offices. But that convenience has a catch: When is time "off" really off?(fn4)
He concludes, "[N]ew technology that enables people to work from off-site locations has muddled the distinctions between work and home."(fn5) Moreover, as employees' personal lives and professional duties become increasingly interrelated, the growth of online social networking websites like Facebook and Twitter has further distorted those same distinctions. The new modes of communication have one thing in common: they challenge the validity of the 9-to-5 workday, a premise that remains inextricably connected to the FLSA framework.
Requirements for Overtime Pay Under the FLSA
The FLSA exempts a large number of employees from receiving overtime pay, as long as they satisfy specific statutory tests and thresholds. For example, executive, administrative, professional, computer, and outside sales employees(fn6) are exempt.(fn7) These classifications often are called the "white-collar exemptions," because they do not apply to blue-collar workers.(fn8) In 2004, the DOL revised the white-collar exemptions.(fn9) Though some of the antiquated standards articulated by the FLSA were discarded, the central thrust of the FLSA remains intact: employers must compensate an employee for overtime work unless the employee is properly classified as exempt under the FLSA. As recent as 2007, an estimated 86 percent of the American workforce (approximately 115 million people) were "covered by the federal overtime rules,"(fn10) making the FLSA overtime provisions all the more important.
The various tests associated with classifying employees as exempt and nonexempt can be difficult to apply. The decision to classify an employee as exempt can expose employers to significant legal liability. As a general matter, to be classified as exempt, an employee must meet certain criteria based on his or her salary and duties.
For example, to qualify as an exempt administrative employee, an employee must receive a salary of at least $455 per week and have a primary duty of office work that is directly related to the general business operations or management of the employer.(fn11) Additionally, the employee's primary duty must include "the exercise of discretion and independent judgment with respect to matters of significance."(fn12)
To qualify as an exempt executive employee, the employee must receive a salary of at least $455 per week, "customarily and regularly direct the work of at least two or more other employees," have some authority concerning employee personnel decisions, and...
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